Southern Railway Co. v. Brock
64 S.E. 1083
Ga.
1909
Check Treatment
Lumpkin, J.

Brock, a minor about eighteen years of age, brought suit against the Southern Bailway Company and its engineer, for damages resulting from being run over by an engine of the defendant company. His arm was broken and his legs crushed, rendering necessary the amputation of both legs below the knees. At the time of the injury he was walking on the track of the defendant company about 253 yards before reaching a public street crossing, and at a place which he alleged was in the limits of an incorporated town, and where the tracks, road-bed, and right of way were much traveled and frequented by the public as a pass-way, within the knowledge of the defendant company, its engineers, and other employees. It was alleged that the exercise of ordinary care would have charged the defendants with knowledge that the track was likely to be occupied by-pedestrians at that point, and also that the track was straight for three quarters of a mile before reaching such point, and that the engineer either did see the plaintiff or ought to have seen him, and could have prevented the injury by the use of ordinary care. There were allegations of failure to comply with an ordinance limiting the speed to six miles per hour, *861or to keep a proper lookout, or to give any signal of approach, or to check the engine, or to comply with the law in reference to approaching public crossings. The plaintiff also alleged that there was a freight-train on a side-track of the defendant company, running alongside the track on which he was, which freight-train was making so much noise as to prevent his hearing the approaching engine and to attract his attention temporarily. He further alleged that the engine which injured him was being run at a high and dangerous rate of speed, and that the defendants were guilty of other acts of negligence. The defendant denied the substantial allegations. It is unnecessary to set out the evidence. On the trial the jury found in favor of the plaintiff against the defendant company $30,000 damages. The company moved for a new trial, which was denied, and it excepted.

Most of the rulings announced in the headnotes require no elaboration. Some of them are directly controlled by former decisions. See Crawford v. Southern Railway Co., 106 Ga. 870 (33 S. E. 826); Macon & Birmingham Ry. Co. v. Parker, 127 Ga. 471 (56 S. E. 616); Southern Railway Co. v. Chatman, 124 Ga. 1026 (53 S. E. 692, 6 L. R. A. (N. S.) 283); Georgia Railroad v. Williams, 74 Ga. 723; Western & Atlantic Railroad v. Meigs, Id. 857. In Smith v. Central Railroad Co., 82 Ga. 801 (10 S. E. 111), where a person walked down a railroad track in the dark and was injured by a train coming up from behind and striking him, and no reason or explanation was given why he did not listen or look, or why he did not or could not hear or know of the approaching train, or that there was anything visible or tangible occupying his attention, it was held that he could not recover. Bleckley, C. J., distinguished that case from the two last above, cited, by saying (p. 806) that in them, “other trains were near,, and the injured person’s attention might have been directed to. them and thus withdrawn from the danger that threatened.” None, of the grounds of the motion for a new trial require a reversal.

It was contended that the verdict was excessive, and that the.judgment should be reversed on that ground. The amount found was large, especially if the plaintiff was considered as a trespasser.. Damages are given as compensation for the injury done, and this is, generally the measure, where the injury is of a character capable of being estimated in money. In some eases, and in regard to. *862some kinds of injury and their results, such as pain and suffering, the measure of damages is left to the enlightened consciences of an impartial jury. In Davis v. Central Railroad, 60 Ga. 329, a charge was approved which instructed the jury on this subject as follows: '“This does not mean that juries can arbitrarily enrich one party at the expense of the other, nor that they should act unreasonably through their caprice. But it authorizes you to give reasonable damages where the proof shows that the law authorizes it. But the jury should exercise common sense and love of justice, and, from a desire to do right, fix an amount that will fairly compensate for the injury received.” The Civil Code, §3803, declares, that, “The question of damages being one for the jury, the court should not interfere, unless the damages are either so small or so excessive as to justify the inference of gross mistake or undue bias.” The judge of the ¡superior court is vested with certain discretionary powers in regard to the granting of a new trial. Section 5477 provides, that, “In ■any case where the verdict of a jury, is found contrary to evidence and the principles of justice and equity, the presiding judge may .grant a new trial before another jury.” And section 5482 provides that “The presiding judge may exercise a sound discretion in .granting or refusing newr trials in cases where the verdict’ may be decidedly and strongly against the weight of evidence, although there may appear to be some slight evidence in favor of the finding.” Thus the judge of the superior court has by law conferred upon him the discretionary power to grant a new trial where the verdict is contrary to evidence and the principles of justice and ■equity, or is decidedly and strongly against the weight of the evidence ; and it is his duty to exercise a sound discretion, and to grant new trials where it should be done. A court of errors has not the same discretionary power, conferred upon it in this regard." When a case comes before the Supreme Court, after the refusal of ■a new trial by the judge of the superior court, it comes not only with the presumption in favor of the verdict of the jury, but also ■stamped with the approval of the presiding judge, after a eon•sideration of the evidence and the verdict and the use of the dis■cretionary power of review which the law confides to him as a right, and imposes upon him as a duty. Thus we are confronted with the question, not as one of primary discretion, but as to whether the trial judge has abused his discretion in approving the *863verdict, and whether there is any evidence sufficient to support it, or whether this court can say that the damages are so excessive as to authorize an inference of gross mistake and undue bias, in spite of the verdict and in spite of its approval.

In the present case a youth of eighteen had an arm broken, and both legs so badly mangled as to require amputation below the knees. He testified, more than a year after the injury, that he had suffered and continued to suffer; that he was unfit to do any active farm work; that he could walk a little on his knees, and also had to use a rolling chair; that he had never worked for wages, but had been offered work several times before the injury; and that he thought wages would be about $35 per month. Having held that there was no error of law in the rulings of which complaint was made, after a careful examination of the evidence we are not able to say that the presiding judge erred in refusing to grant a new trial on the ground that the verdict was contrary to law and evidence, or that it was so excessive in amount as to justify the inference by us of gross mistake or undue bias, after its approval by the trial judge. For instances in which large verdicts have been sustained where no error of law had been committed, see Georgia Pacific Railway Co. v. Dooley, 86 Ga. 294 (12 S. E. 923, 12 L. R. A. 342); Richmond & Danville R. Co. v. Allison, 89 Ga. 567 (16 S. E. 116); Atlantic Coast Line R. Co. v. Jones, ante, 189 (63 S. E. 834); Merchants & Miners Transportation Co. v. Corcoran, 4 Ga. App. 654 (62 S. E. 130); Seaboard Air-Line Ry. v. Miller, 5 Ga. App. 402 (63 S. E. 299).

Judgment affirmed.

All the Justices concur.